EXIM Bank Agricultural University Bangladesh

Course Title: Law of Criminal Procedure II

Course Code: LAW 313
Assignment Topic: In criminal cases, at least one appeal is a substantive right conferred on
accused by the statute, while the revision power is discretionary and is not a matter of right.
Illustrate the statement referring the provisions relating to Appeal and Revision under the CrPC,
1898.

Submission Date: 22. 10. 2020

Submitted by Submitted to
Md. Arifin Arif Md. Ramjan Hossain
Reg: LLBA2018000559 Lecturer
Department of Law Department of Law
EXIM Bank Agricultural University Bangladesh EXIM Bank Agricultural University Bangladesh

EXIM Bank Agricultural University Bangladesh

House no: 69-69/1; BoroIndara Moor
Chapainawabganj; Postcode-6300
Tel: 078153525-29
CONTENTS
Chapter I
1. Introduction
2. How and where to appeal for a criminal matter
3. Appeal
4. Criminal Appeal

5. Appeal on matters other than a sentence

6. Where to appeal

7. Appeal against any sentence

8. Appeal against acquittal

9. Second Appeal

10. Where no appeal is permitted

11. Some general procedure of criminal appeal

12. Appeal from order refusing to accept or rejecting a surety

13. Appeal against inadequacy of sentence

14. Order by High Court Division on appeal to be certified to lower Court

Chapter II
1. REVISION
2. CONCLUSION
Chapter I
1. Introduction:
In law, an appeal is the process in which cases are reviewed by a higher authority, where parties
request a formal change to an official decision. Appeals function both as a process for error
correction as well as a process of clarifying and interpreting law. Although appellate courts have
existed for thousands of years, common law countries did not incorporate an affirmative right to
appeal into their jurisprudence until the 19th century.1
The criminal justice processes have serious repercussions for an individual’s right to life and
personal liberty and therefore, the decisions of lower courts should be scrutinized to obviate any
miscarriage of justice. Every institution created by humans is fallible and so is true of courts. It is
this realization that demands that the laws on criminal procedures contain specific provisions on
appeal against a judgment or order of the courts.
The Code of Criminal Procedure, 1898 (hereinafter CrPC), contains elaborate provisions on
appeals against a judgment or order of the criminal courts. However, CrPC provisions are not the
only provisions wherein one can find the process pertaining to appeals. Several of special and
local legislations incorporate appellate process which may mark a departure from the general
appellate process contained in CrPC. 2
2. How and where to appeal for a criminal matter3
Appeal on any criminal matter is dealt with the Code of Criminal Procedure, 1898 and this is the
main procedural law for any criminal case, therefore, we will focus on the details of this law and
would try to present the core of the criminal appeal in best possible way.

3. Appeal
An appeal is an application to the upper court when any party is aggrieved by any judgement or
order by a lower court. In criminal matters appeal is also known as Petitioner of Appeal [u/s 419
of the code]. An appeal is acceptable on the matter of “question of fact” and “question of law”.

It needs to be pointed out that except for the statutory provisions laid down by CrPC or any other
law which is in force, an appeal cannot lie from any judgment or an order of a criminal
court.4 Thus, there is no vested right to appeal as such as even the first appeal will be subjected
to statutory limitations. The justification behind this principle is that the courts which try a case
are competent enough with the presumption that the trial has been conducted fairly. However, as

1
From Wikipedia, the free encyclopedia, Link: https://en.wikipedia.org/wiki/Appeal, Accessed on 06 October 2020
2
WebPage:http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/05._criminal_justice_administration/20._a
ppellate_process/et/8184_et_et.pdf. Accessed on 06 October,2020
3
Webpage Name: LAW HELP BD, Link: https://lawhelpbd.com/crpc/criminal-appeal/ Accessed on 06
October,2020
4
Section 404 of The Code of Criminal Procedure, 1898.
per the proviso, the victim5 has a right to appeal against any order passed by the Court under
special circumstances comprising of a judgment of acquittal, conviction for lesser offence or
inadequate compensation.

4. Criminal Appeal
A criminal appeal is an appeal on the criminal matter to the higher court, these criminal matters
can be classified into three categories, and they are as follows;

1. Appeal on matters other than a sentence: where any party of any criminal case is aggrieved
on any decision of a court and want it to be changed.
2. Appeal against sentence: where any aggrieved party believes that the given punishment is less
or more than what it should be.
3. Appeal against acquittal: When a charged person declared not guilty by a court that is known
as an acquittal.

5. Appeal on matters other than a sentence

In this case, we may call them Order as most of them are orders by a court by which a party of
the case got aggrieved, there are as follows.

▪ No provision, no appeal: The general rule is an appeal can only lie as “as of right” when it is
mentioned in any provision of law. This guideline is given under section 404 of the code of
criminal procedure, 1898. On the other hand, there is another option to present an appeal
before High Court Division of Supreme Court but in that case, this is not the right of the
petitioner, rather a privilege, the court will decide whether the case should be taken or not,
this type of appeal is known as leave to appeal.
▪ Matters of section 89: When under section 89 an application lies before a court to return the
attached property and that application gets rejected then an appeal can lie against that
rejection. [section 405]
▪ Matters of section 118: An appeal can lie against any order for Bond for peace under section
118 [section 406]
▪ Matters of section 112: When a person is aggrieved by an order that refusing to accept or
reject a surety under section 122, may appeal against such an order under section 406A of
the code.
▪ Special appeal right: When one co-accused gets the right to appeal by means of leave to
appeal then other co-accused gets the same right considering that as a special ground. As
mentioned under section 415A of the code.

5
Defined in Section 2(wa) of The Code of Criminal Procedure, 1898 as a person who has suffered any loss or injury
caused by reason of the act or omission for which the accused person has been charged and the expression “victim”
includes his or her guardian or legal heir.
 6. Where to appeal
For the above-mentioned procedure appeal lies:

▪ From Chief metropolitan magistrate, chief judicial magistrate, district magistrate to session
judge.
▪ From metropolitan magistrate to chief metropolitan magistrate
▪ From any executive magistrate to district magistrate

7. Appeal against any sentence

▪ From Second class and Third class magistrate to Chief judicial magistrate. [section 407]
▪ From the First-class magistrate and from Joint session judge to Session judge,
▪ but, if joint session judge Convict any person for 5 or more years or under section 224
then the Appeal shall lie to the High court division of the supreme court. [section 408]
▪ When appeal lies before the session court, the session court himself can try the case or it can
also be sent to Additional session judge as mentioned under section 409.
▪ From Session Court or Additional session court apple lies to the High court division of
Bangladesh Supreme Court. [section 410]

8. Appeal against acquittal

Who can file such appeal?

By public prosecutor: against any order of punishment or acquittal, within six months. the public
prosecutor can file an appeal up to two times; this is also known as the second appeal.

9. Second Appeal:
▪ When an appeal is made against an acquittal of a magistrate and files an appeal to the
session court is considered as a first appeal. Being aggrieved when the public prosecutor
file another application against the decision of the session court to the High Court
Division of the Supreme Court is known as the second appeal.

By the complainant: A complainant can appeal against an acquittal within 60 days of such order.
As per section 417 of the code of criminal procedure, 1898

10. Where no appeal is permitted

There are some situations where appeal is not permitted.
▪ When a person pleads guilty then no appeal lies against that guilty plea but the appeal can be
presented where there is a question of law. As mentioned in section 412 of the code.
▪ No appeal lies in petty cases where the punishment is not more than one-month imprisonment
or where the fine does not exceed 50 takas. [Section 413]
▪ No appeal from certain summary conviction where the fine does not exceed 200 takas.
[Section 414]
 11. Some general procedure of criminal appeal

What to do when the appellant is in jail?

▪ The appellant may present his petition of appeal and the other documents via the officer in
charge of the jail. [Section 420]
Procedure after the appeal is received
▪ The appellate court if considers that there is no sufficient ground shall dismiss that appeal.
[Section 421]
▪ If the appellate court does not dismiss the appeal then the court will provide notice to the
government to take necessary steps and to be present on the time of appeal hearing. [Section
422]
Powers of the appellate Court to dispose of such appeal:
▪ After hearing the appeal the court may, Dismiss the appeal or keep the same judgment or can
change, reserve, enhance the punishment. [Section 423]
Hope this conclusive idea with the easy explanation will help the readers to have a compact idea
of Criminal appeal under Code of Criminal Procedure, 1898.

The law provides a person who has been convicted of a crime to appeal to the Supreme Court or
the High Court or the Sessions Court as per the circumstances.6 In the case of Arun Kumar vs.
State of Uttar Pradesh7, the Honourable Supreme Court held that if the High Court found that
the view taken by the Sessions Judge to acquit the appellants was manifestly wrong, moreover, it
even led to miscarriage of justice, therefore, the High Court was correct in setting aside this
acquittal and convicting them.
A similar right to appeal has been granted to one or all accused persons if more than one persons
have been convicted in a trial and such order has been passed by the court.8

However, there are certain circumstances under which no appeal shall lie. These provisions have
been laid down under Section 265G, Section 4129 and Section 41310 of the CrPC.

As to the finality of the judgments and orders passed on appeal, CrPC makes them final except in
some cases.11 This shows how paramount importance is given to appeals.

12. Appeal from order refusing to accept or rejecting a surety

12
[406A. Any person aggrieved by an order refusing to accept or rejecting a surety under section
122 may appeal against such order,-

6
Section 410 of The Code of Criminal Procedure, 1898.
7
AIR 1989 SC 1445
8
Section 415A of The Code of Criminal Procedure, 1898.
9
No appeal in certain cases when accused pleads guilty.
10
No appeal in petty cases.
11
Section 430 of The Code of Criminal Procedure, 1898.
13
[(a) if made by the Chief Metropolitan Magistrate14[or the Chief Judicial Magistrate] or a
District Magistrate, to the Court of Session;
(b) if made by a Metropolitan Magistrate other than the Chief Metropolitan Magistrate, to the
Chief Metropolitan Magistrate; or
(c) if made by any other Magistrate,15[whether Executive or Judicial,] to the District
Magistrate 16[or the Chief Judicial Magistrate.]

13. Appeal against inadequacy of sentence

417A.(1) The Government may, in any case of conviction on a trial held by any court, direct the
Public Prosecutor to present an appeal to the High Court Division against the sentence on the
ground of its inadequacy.

(2) A complainant may, in any case of conviction on a trial held by any Court, present an appeal
to the Appellate Court against the sentence on the ground of its inadequacy:

provided that no appeal under this sub-section shall be entertained by the appellate court after the
expiry of sixty days from the date of conviction.

(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the
Appellate Court shall not enhance the sentence except after giving to the accused a reasonable
opportunity of showing cause against such enhancement and while showing cause, the accused
may plead for his acquittal or for the reduction of the sentence.

14.Order by High Court Division on appeal to be certified to lower

Court

425. 17(1) Whenever a case is decided on appeal by the High Court Division under this Chapter,
it shall certify its judgment or order to the Court by which the finding, sentence or order appealed
against was recorded or passed:

12
Section 406A was inserted by the Code of Criminal Procedure (Amendment) Act, 1923 (Act No. XVIII of 1923)
13
Clauses (a), (b) and (c) were substituted, for clauses (b) and (c) by the Schedule of the Code of Criminal
Procedure (Amendment) Ordinance, 1976 (Ordinance No. LXXXVI of 1976)
14
The words “or the Chief Judicial Magistrate” after the words “Chief Metropolitan Magistrate” were substituted by
section 79(a) of the Code of Criminal Procedure (Amendment) Act, 2009 (Act No. XXXII of 2009) (with effect
from 1st November, 2007).
15
The words and comma “whether Executive or Judicial,” were inserted after the word and comma “Magistrate,” by
section 79(b) of the Code of Criminal Procedure (Amendment) Act, 2009 (Act No. XXXII of 2009) (with effect
from 1st November, 2007).
The words and full stop “or the Chief Judicial Magistrate.” were inserted by section 79(b) of the Code of Criminal
16

Procedure (Amendment) Act, 2009 (Act No. XXXII of 2009) (with effect from 1st November, 2007).
17
Section (1) was substituted for Sub-section (1) by section 82 of the Code of Criminal Procedure (Amendment)
Act, 2009 (Act No. XXXII of 2009) (with effect from 1st November, 2007).
Provided that where the finding sentence or order was recorded or passed by a Magistrate other
than the Chief Metropolitan Magistrate, or the Chief Judicial Magistrate, the certificate shall be
sent through the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may
be.
(2) The Court to which the High Court Division certifies its judgment or order shall thereupon
make such orders as are conformable to the judgment or order of the High Court Division; and, if
necessary, the record shall be amended in accordance therewith.

Chapter II
REVISION
The word “revision” has not been defined in CrPC, however, as per Section 435 of CrPC, the
High Court or any Sessions Judge have been empowered to call for and examine the records of
any proceeding satisfy oneself:

1. as to the correctness, legality, or propriety of any finding, sentence or order, whether

recorded or passed, and
2. as to the regularity of any proceedings of an inferior court.

Moreover, they have the powers to direct the execution of any sentence or an order to be
suspended. Not just this, but to even direct to release the accused on bail or on his own bond if
the accused is in confinement. They may even order an inquiry subject to certain limitations. 18 It
is clearly evident that the appellant courts have been granted such powers so as to obviate any
failure of justice.

The Honourable Supreme Court of India, in the context of this provision, held in the case of Amit
Kapoor vs Ramesh Chander & Anr19 that “the revisional jurisdiction can be invoked where the
decisions under challenge are grossly erroneous, there is no compliance with the provisions of
law, the finding recorded is based on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely.” The same Court, further explaining this
provision, held in the case of State Of Rajasthan vs Fatehkaran Mehdu20 that “the object of this
provision is to set right a patent defect or an error of jurisdiction or law or the perversity which
has crept in the proceeding.”

The High Court has the power to take up a revision petition on its own motion i.e. suo moto or on
the petition by an aggrieved party or any other party. The Allahabad High Court held in the case
of Faruk @ Gaffar vs State Of U.P21. that “whenever the matter is brought to the notice of the

18
Section 436 of The Code of Criminal Procedure, 1898.
19
Section 336 of The Code of Criminal Procedure, 1898.
20
(2012) 9 SCC 460
21
Criminal Misc. Application No. 227273 of 2012 of India
Court and the Court is satisfied that in the facts and circumstances of the case, a case is made out
for exercising the revisional powers suo motu, it can always do so in the interest of justice.”

There are certain statutory limitations that have been imposed on the High Court for exercising
its revisional powers as per Section 439 of CrPC, however the only statutory requirement to
exercise this power is that the records of the proceedings are presented before it, after which it is
solely the discretion of the Court:

1. An accused is to be given due opportunity to hear him and on order cannot be passed
unless this is followed.
2. In instances where a person has forwarded a revisional application assuming that an
appeal did not lie in such a case, the High Court has to treat such application as an
appeal in the interests of justice.
3. An application of revision cannot be proceeded with if it has been filed by a party
where the party could have appealed but did not go for it.

The High Court, as well as the Sessions Court, may call for record of any proceeding of any
inferior criminal Court situated within its jurisdiction for the purpose of satisfying itself as to the
correctness, legality of propriety of any finding, sentence, etc. Thus, the Sessions Judge could
examine the question in relation to the inadequacy of sentence in view of the powers conferred
on him by Section 435(1) of CrPC.22

The difference between the powers of the High Court and the Sessions Court being that the
Sessions Judge can only exercise revisional powers which he has called for by himself, whereas
the High Court has the power to take up a revisional matter by itself or when it is brought to its
knowledge. The powers of a Sessions Court are the same as that of the High Court while dealing
with revisional cases. The Madras High Court in the case S. Balasubramaninan vs The State Of
Tamil Nadu23 held that “a Sessions Judge can entertain an application in revision against
sentence and enhance the sentence in revision in certain cases.” It has also been previously held
by the Hon’ble Supreme Court in the case Alamgir vs State of Bihar24 that “in respect of
enhancement of sentence in revision the enhancement can be made only if the Court is satisfied
the sentence imposed by the trial Court is unduly lenient, or that in passing the order of sentence,
the trial court has manifestly failed to consider the relevant facts”

CONCLUSION
It can thus be clearly seen that through the process of appeals, a person gets an opportunity to get
any legal, or factual error in an order or judgment corrected. Nevertheless, appeals against any
judgment, or order, or sentence of a criminal court can only be preferred when it has been
specifically provided in the statutes. Thus, the right to appeal can only be exercised within the
limits laid down by CrPC or any other law which is in force and hence, this is a constricted right.

22
Section 439A of The Code of Criminal Procedure, 1898.
23
Crl. Revision Nos.8,9 of 2009 and Crl.O.P.No.8025 of 2008 of India
24
AIR 1959 SC 436
As far as the decision to appeal is considered, it is discretionary except in cases when an accused
person has been sentenced to death by Sessions Court. Not only this, there are certain cases as
well in which appeal is not allowed at all, in fact the judgment, or order, or sentence delivered by
the criminal court will attain finality.

Moreover, there is no doubt that the revisional jurisdiction of the High Court is quiet extensive.
In fact, it can be said that no form of any judicial injustice can permeate through this power. It
has been held in various decisions that the High Court is allowed to exercise it inherent powers
when dealing with cases of revision. These inherent powers apply to both substantive as well as
procedural matters. However, it cannot re-examine any evidence.
REFERENCES:

1. From Wikipedia, the free encyclopedia, Link: https://en.wikipedia.org/wiki/Appeal, Accessed on 06

October 2020

2. WebPage:http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/05._criminal_justice_administratio
n/20._appellate_process/et/8184_et_et.pdf. Accessed on 06 October,2020

3. Webpage Name: LAW HELP BD, Link: https://lawhelpbd.com/crpc/criminal-appeal/ Accessed on 06

October,2020

4. Section 404 of The Code of Criminal Procedure, 1898.

5. Defined in Section 2(wa) of The Code of Criminal Procedure, 1898 as a person who has suffered any loss
or injury caused by reason of the act or omission for which the accused person has been charged and the
expression “victim” includes his or her guardian or legal heir.

6. Section 410 of The Code of Criminal Procedure, 1898.

7. AIR 1989 SC 1445

8. Section 415A of The Code of Criminal Procedure, 1898.

9. No appeal in certain cases when accused pleads guilty.

10. No appeal in petty cases.

11. Section 430 of The Code of Criminal Procedure, 1898.

12. Section 406A was inserted by the Code of Criminal Procedure (Amendment) Act, 1923 (Act No. XVIII of
1923)

13. Clauses (a), (b) and (c) were substituted, for clauses (b) and (c) by the Schedule of the Code of Criminal
Procedure (Amendment) Ordinance, 1976 (Ordinance No. LXXXVI of 1976)

14. The words “or the Chief Judicial Magistrate” after the words “Chief Metropolitan Magistrate” were
substituted by section 79(a) of the Code of Criminal Procedure (Amendment) Act, 2009 (Act No. XXXII of
2009) (with effect from 1st November, 2007).

15. The words and comma “whether Executive or Judicial,” were inserted after the word and comma
“Magistrate,” by section 79(b) of the Code of Criminal Procedure (Amendment) Act, 2009 (Act No. XXXII
of 2009) (with effect from 1st November, 2007).
16. The words and full stop “or the Chief Judicial Magistrate.” were inserted by section 79(b) of the Code of
Criminal Procedure (Amendment) Act, 2009 (Act No. XXXII of 2009) (with effect from 1st November,
2007).
17. Section (1) was substituted for Sub-section (1) by section 82 of the Code of Criminal Procedure
(Amendment) Act, 2009 (Act No. XXXII of 2009) (with effect from 1st November, 2007).
18. Section 436 of The Code of Criminal Procedure, 1898.

19. Section 336 of The Code of Criminal Procedure, 1898.

20. (2012) 9 SCC 460

21. Criminal Misc. Application No. 227273 of 2012 of India

22. Section 439A of The Code of Criminal Procedure, 1898.

23. Crl. Revision Nos.8,9 of 2009 and Crl.O.P.No.8025 of 2008 of India

24. AIR 1959 SC 436